Director of Public Prosecutions v Daniels (a pseudonym)
[2021] VCC 334
•25 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEROME DANIELS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 March 2021 |
DATE OF SENTENCE: | 25 March 2021 |
CASE MAY BE CITED AS: | DPP v Daniels (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 334 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Armed Robbery – Attempted Armed Robbery – Young Offender
Cases Cited: Bugmy v The Queen (2013) 249 CLR 57; R v Verdins 16 VR 269
Sentence: Community Corrections Order for three years duration.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Singh | Office of Public Prosecutions |
For the Accused | Ms N. Kaddeche | Gallant Law |
HIS HONOUR:
1Jerome Daniels[1], you have pleaded guilty to two charges of attempted armed robbery. The crime of armed robbery carries a maximum penalty of 25 years imprisonment and attempted armed robbery carries a maximum penalty of 20 years imprisonment. You have no criminal record. You served five days pre‑sentence detention in relation to this matter.
[1] A pseudonym.
2The summary of your offending is adequately set out in Exhibit A of the Prosecution Opening for Plea which forms part of these reasons for sentence.
Circumstances of Offending
3In briefer terms, on 12 August 2018 in the evening you and two unknown co‑offenders entered the Pizza Hut restaurant on Gourlay Road, Caroline Springs armed with metal poles and a hammer. Several people were working inside, one of whom ran out of the rear of the store as soon as he saw the first offender and called 000.
4One of the co-offenders made demands for keys to the store safe. Another went to the front counter area and forcibly removed the cash register, which continued approximately $1,500 cash, while you, together with another co‑offender, smashed a cash register screen, front window and other property with weapons being carried. Obviously, it caused significant fear to the patrons present.
5On 23 August 2018 you and two other unknown co-offenders entered Slices pizza restaurant in Caroline Springs, coming through the front entrance armed with metal poles and a meat cleaver. You and your co-offenders immediately started hitting light fittings, restaurant items and furniture with your weapons.
6Patrons were present, including two patrons who were dining with their seven-year-old daughter at the time. They hid under a table, covering their daughter with arms to protect her. Your group, or members of your group, jumped over the front counter and tried to steal the cash register while smashing various items in the restaurant and yelling at the patrons. You were unsuccessful in stealing the cash register; however, an Apple iPad mini was stolen from the restaurant.
7About 20 minutes later the three of you then went to Wally's Discount Liquor Store in Sydenham. You ran into the front of the store confronting Sukbir Walia, who had a spanner in his hand. You began to yell at him, so he threw the spanner at you and then he armed himself with a baseball bat. He then ran from behind the counter giving chase to you and you left the scene.
8You were arrested on 24 August 2020. Just prior to the arrest you quickly reset your mobile phone to factory setting, causing it to wipe evidence before police could examine it. You denied committing the offences during an initial interview. You were then placed in a cell. A covert operative commenced a conversation with you where you stated that you grabbed safes and cash registers from pizza shops, you got $400 each, and made general admissions to the offending.
9You said that your role was holding up people, making sure they do not run out of the store. Your co-offenders in relation to this offending have not been charged.
10This is extremely serious offending and you have heard me tell you what the maximum penalty is for the offences of armed robbery and attempted armed robbery. The use of weapons in particular is an extremely serious aspect of the offending, also the fear and terror that you instilled in the patrons and workers of the various establishments.
11There was a degree of planning and deliberation, as revealed by your conversation with the covert operative. Almost always offending of this type results in imprisonment in adult prison for years.
12In your case not even the fact that you were 18 at the time of the commission of these offences is a matter that would necessarily spare you from being at least detained in a youth justice centre. Eighteen, 19-year-olds similar to your experience have routinely been either gaoled in adult gaol or detained in youth justice centres for this type of offending.
13We had a sentencing indication hearing in the matter. The Prosecution made some concessions but nevertheless made the reasonable submission, because of the number of episodes of violence within them and some of the patrons being obviously terrified, a period of custody is the only appropriate disposition.
14The Prosecution in that submission at the sentencing indication hearing made some concessions in relation to the materials that were relied upon on your behalf including referring to an extract from the psychological report of Lisa Jackson where it stated:
'Within the context of his low confidence, increased anxiety and arguments between himself and his parents, Mr Daniels started abusing drugs as a means of avoidance and, for a period of 6 months, was living out of home mixing with other drug using peers’.
15It was within the context of these events that you committed the offences, suggesting that your ability to make rational choices or understand the consequences of his actions were significantly impaired and you were vulnerable to the influence of others.
16Quite rightly Mr Singh on behalf of the Prosecution challenged the capacity of that opinion to found a basis for consideration of Verdins under limbs 1 and 2, as it is often described in relation to that case.
17The opinion from Ms Jackson, however, nonetheless points to what was going on in your life in that period of time and, as Ms Kaddeche on your behalf points out, this was the two-week period that came at a time when you were experiencing low mood and feelings of sadness and confusion and gravitated towards negative peers.
18I accept the nature of the offending in the context of what is now known about your functioning, as I am assisted by the two reports, and the letters of support suggest that your role, whilst an essential one and one of equal culpability, was not a leading role. But importantly those matters that are expressed within that paragraph that I just read out from Ms Jackson's report as it appears in the Prosecution submissions, those matters that Ms Jackson refer to have resolved, and resolved some time ago it would seem, over a lengthy period on strict bail that at least at times has included supervision and curfew.
19That is a significant matter. As I said earlier, the fact that you were 18 at the time in and of itself is not a matter that would spare you detention or gaol. Had this matter been dealt with closer to that time, it might be you were in a different circumstance. The fact is I am satisfied that over the two and a half years you have rehabilitated and there is a vital community interest in that taking place for someone in your circumstances.
20Other important concessions were made by the prosecution at the sentencing indication hearing in that some aspect of Verdins, in particular in relation to your experience in any custody or detention, which is often referred to as hardship in custody, is supported.
21There was reference to the neuropsychological report which was authored by Dr Rachel O'Meara:
'There is little evidence to suggest that Mr Daniels’s cognitive impairment caused or contributed to his offending…It is more likely his reported polysubstance use contributed to the alleged offending and his mental health issues indirectly contributed, given that he reported using substances to self-medicate’.
22Continuing on:
‘Daniels is likely to experience difficulty managing aspects of a prison environment as a result of the cognitive deficits evident on testing. Specifically, he will be slow to learn the rules and routines of a prison and to adjust to any changes in these, but will be able to retain information once learnt. He will also have difficulty comprehending, retaining and following instructions, providing in a lengthy format or using more complex vocabulary, which may make him appear non-compliant or resistant'.
23Other matters of mitigation that were conceded by the Prosecution of course, and quite rightly, was that you were 18 years of age when you committed the offences and were 20 at the time of facing the court, falling within the definition of a young offender, and therefore the principles of rehabilitation loom large. You have no prior convictions whatsoever, thus that two-week episode can be viewed as entirely out of character for you. And given the letters of support, you had clearly settled back into living with your family again and that you had a low risk of reoffending.
24The Prosecution fairly also considered that your childhood experience was one that was relevant to my assessment of the matters in the case and reference was made to Bugmy. I accept that part of your experience has been the difficulties that your parents had in your formative years in dragging you and themselves up to the point where they now have. But more significant in my view is the support they have for you and the example they have set for you in the contributions they have made to your family and to society, notwithstanding difficulties and challenges.
25To put it bluntly, I am quite sure it would break their hearts to see you go into custody in any shape or form and you need to bear that in mind before you ever contemplated again associating with negative peers and taking drugs. Because all of those matters based on the reports I have read, all of those matters, I am satisfied in your case would lead you to making poor choices and acting impulsively. And you will not get a second chance. You have got to understand that.
26The matters raised by the Prosecution in relation to the seriousness of the offending are well made and general deterrence and denunciation are very significant in cases like this. As I have said, those considerations are often so prominent that even for young people in your situation gaol or detention is the only option. In your case I accept the matters set out in the helpful submissions on your behalf made by Ms Kaddeche.
27In particular, looking at the matter holistically rather than trying to break it down into particular elements of aspects of your make-up, whether it is cognitive functioning, the drug use, the teenage years you were going through when you were experiencing some difficulties adjusting at home, it is the combination of all those factors which led you to gravitate towards negative peers and engage in this violent, antisocial and deplorable conduct.
28As I said, you are fortunate because you have got some abilities. You have got sporting ability, an association with sporting clubs. Those matters are set out in Exhibit 1 and touched on in the written letters of support and the reports to which I have referred.
29You are a good footballer. You do not have to be an AFL player or a VFA player, you can play at a high level of football in this town and find it very rewarding. And perhaps more importantly the support within a football club and the positive role models you can encounter can help open up things for you in life.
30Principally, as I have said, you have got an extremely supportive family and that is to your advantage, because that is going to help you continue on the path you have been on over the last two and a half years. You were a young offender at the time of the offending and at sentence and I accept, based on the materials, the reports tendered and the circumstances of the offending, that you were someone who was easily led and susceptible to the influence of peers, particularly once drug use was involved, and therefore it is very significant. But you have demonstrated you are well out of it.
31Ms Kaddeche set out that it seems you have not developed a pattern of antisocial behaviour or entrenched negative behaviour. You were at the crossroads. You have been caught early enough and behaviour is not fully embedded. That is further supported by your lack of criminal history. I accept those matters.
32Your plea of guilty is significant. It came at a time which we are still going through, where there is an enormous backlog of trials in this court. It is not an exaggeration to describe the trial list as one in crisis in terms of the backlog, so the utilitarian value of your pleas of guilty is very significant.
33It is also a significant indication of your acceptance of responsibility and contrition, which further supports my view of your prospects of rehabilitation.
34Given all of those matters, and just before I come to sentence, I will touch on Exhibit 2, which is the report of Ms O'Meara, which referred in particular to the severely impaired extremely low performances in relation to verbal new learning, delayed recall and recognition of less meaningful verbal information, delayed recall of visual information and verbal abstract reasoning but also moderately low performances in other areas.
35I have referred to those matters broadly as cognitive deficits, but the significance of them in the intuitive synthesis of all the sentencing factors should not be downplayed by the brevity with which I have referred to it. As I have indicated, the circumstances in which you come before the court are constituted by a number of matters and factors personal to you.
36It is in assessing all of them that I considered in your case that general deterrence and denunciation can be met within the disposition of a lengthy community corrections order given the conclusions about the vital community interest in rehabilitation of young offenders and the progress you have made over a lengthy period of strict bail. You were assessed as suitable for a community corrections order and accordingly, Mr Daniels, I sentence you as follows.
37Will you stand up now, please.
38I am going to impose an aggregate sentence in relation to the three charges on the indictment and I do so because of the similar nature of the offences and the fact that they are a series of offences. In relation to those three charges I impose a community corrections order of three years duration with the following conditions:
a)you perform 250 hours of unpaid community work;
b)you will be assessed for drug and alcohol treatment and rehabilitation; and
c)you will be subject to supervision.
39I will also impose judicial monitoring, which means every six months I will need you back here before me to make sure you are still doing what it appears you need to get done and that is staying out of trouble, keeping away from drugs, trying to move forward in your life. All right, so six months from today will be the first judicial monitoring session.
40I will direct that 75 hours of treatment and rehabilitation programs can be credited towards the community work hours.
41Do you consent to the order, Mr Daniels?
42OFFENDER: Yes, I do, Your Honour.
43HIS HONOUR: All right. Well, that will be prepared and you will sign it and then I will sign it. I declare that you have served five days of pre‑sentence detention. I take that into account. Pursuant to s.6AAA of the Sentencing Act if it was not for your pleas of guilty in this matter I would have sentenced you to be detained in a youth justice centre for a period of two years.
44Are there any other orders I need to make?
45MS SINGH: No, thank you.
46MS KADDECHE: No, Your Honour.
47HIS HONOUR: All right. The judicial monitoring date will be 25 August of this year. It will be at 9.30 am. You do not need to be represented for that. You can if you want, but you do not need to be. The judicial monitoring is really me just speaking to you to make sure everything is going okay. You can turn up with your dad if you want or anyone, but it is really to make sure you are on track and for me to hear about any delays or problems in Corrections providing the treatment and rehabilitation conditions. But effectively it will just be, I presume, me hearing about how well you are doing, all right? All right.
48We will just wait for that to be prepared and I will sign it. I am sure you do understand, because Ms Kaddeche would have explained it to you and your solicitor would have and your parents have and no doubt others have as well. You are very lucky you are not being detained in a youth justice centre. Some judges might even gaol you, you know, which would be just a devastating thing for your life. So accept the opportunity and embrace it and remember just how close you have come if you are ever tempted to say, 'Oh, stuff it, I've had enough and I'm not doing this, I'm not doing that, I'm going to go and muck up'.
49For someone like you that is the first step that might be easier to make, but for someone like you I think your judgment goes out the window once you have taken that step, so do not take that step.
50OFFENDER: Yes, Your Honour.
51HIS HONOUR: You can have a seat now.
52MR SINGH: Your Honour, I know this is trite, but I take it that's with conviction?
53HIS HONOUR: Yes, it is. Yes, thank you. It is with conviction. And while we're waiting for the document I should also - I do also need to warn you, Mr Daniels, and tell you that if you breach this order you will be back before me for resentencing. Breach it by reoffending, the options are going to be very limited as to what to do with you. Understand what I mean by that?
54OFFENDER: Yes, Your Honour.
55HIS HONOUR: There's only one way from here. If you breach it by non‑compliance, if you don't attend properly when you're supposed to or do as you're directed and they breach you for non-compliance, again I'll have to resentence you and it's going to be a difficult thing because of - this is a huge opportunity for you. All right, so make sure you do everything that's required of you and listen carefully to the instructions of the Corrections officers. You can have a seat again.
56Sorry, my associate misheard me. All right. Now we have got the community corrections order that we handed down to Ms Kaddeche and you can peruse it and then you will be asked to sign it, Mr Daniels.
57All right, we'll get a copy of that to you, Mr Daniels. Thanks, Mr Singh, for your help. Thanks, Ms Kaddeche. The matter was very helpfully and well dealt with. Mr Daniels, just remember you're lucky not just because of what's happening today but you're lucky you've got your family support, so listen to them. Don't muck up. All right. Yes, we'll adjourn the court.
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